The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO

Donald Names, Director, OFO's Special Services Staff

Digest Staff

Editor: Arnold Rubin

Writers: Gerard Thomson, Arnold Rubin, Lauren Schwartzreich

Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.

EEOC's regulations at 29 C.F.R. Section 1614.501 (c)(1) provide that back pay with interest, where sovereign immunity has been waived, are included as a remedy for unlawful discrimination. In the Civil Rights Act of 1991, Congress waived the government's sovereign immunity with respect to interest on back pay awards in cases where the employment provisions of the Rehabilitation Act had been violated. In this case, involving a nonselection, the EEOC Administrative Judge (AJ) found a violation of the Rehabilitation Act and awarded back pay. On appeal, the Commission found that complainant was entitled to interest on the back pay, which was not included in the agency's calculations. The Commission remanded the matter, directing the agency to calculate the interest on complainant's back pay award. Treadway v. Department of Veterans Affairs, EEOC Appeal No. 01A30237 (May 15, 2003).

No Nexus Found Between Discrimination and Foreclosure. In this case, the Commission affirmed the agency's decision that complainant was not entitled to compensatory damages in connection with the foreclosure and sale of his home. EEOC found that complainant had failed to show the necessary nexus between the agency's discriminatory actions and the pecuniary losses he suffered as a result of the foreclosure and sale of his residence. The Commission found that complainant's financial challenges, which he faced regarding his household budget, began with his wife and her income departing from the marital home in the months preceding the agency's discriminatory action. Gancayco v. United States Postal Service, EEOC Appeal No. 01A23324 (May 15, 2003), request to reconsider (RTR) denied. EEOC Request No. 05A30948 (July 15, 2003).

No Forced Retirement Found. Complainant claimed, on several bases of discrimination, that he was forced to retire. The AJ found no discrimination, and the Commission agreed. The Commission found no evidence that complainant was subjected to intolerable working conditions, for unlawful discriminatory reasons, such that a reasonable person would have been compelled to retire or resign. EEOC found that complainant took advantage of an early retirement that afforded him increased benefits as to retirement pay and medical insurance. Moore v. Department of the Navy, EEOC Appeal No. 01A21625 (June 12, 2003).

Agency Violated Rehabilitation Act Regarding Its Disability-Related Inquiry. The Commission reversed the agency's final decision (FAD) finding no discrimination based on disability. The Commission found that the agency's District Manager (DM) had improperly asked complainant to stand up in a staff meeting and explain that she was going to the hospital due to her bi-polar disorder. EEOC also found that DM had unlawfully asked complainant, upon her release from the hospital, to provide a doctor's note stating that she was neither homicidal nor suicidal. The Commission noted that the agency had failed to meet its burden of showing that DM's disability-related inquiry was job related and consistent with business necessity. The agency had failed to show that DM had a reasonable belief, based on objective evidence (i.e., directly observed or provided by a credible third party) that complainant's ability to perform essential job functions was impaired by her medical condition; or that she posed a direct threat due to a medical condition. By way of relief, the Commission ordered the agency to conduct Rehabilitation Act training for all management officials involved in this matter and to notify complainant of her right to submit evidence on compensatory damages. Chambliss v. Social Security Administration, EEOC Appeal No. 01A21179 (March 19, 2003).

Agency Regarded Complainant as Disabled and Failed to Show High Probability of Substantial Harm. After initially selecting complainant for the position of Mail Handler, the agency informed complainant that it would not hire her. The agency's Medical Director rated complainant, who was 5 feet, 5 inches tall and weighed 343 pounds, a "moderate risk," because she might have difficulty with prolonged standing and walking due to her weight. The agency had a policy of denying employment to any applicant who was rated a "moderate risk," and determined in this case that the strenuous duties of Mail Handler would jeopardize complainant's health and safety. The Commission found that the agency had failed to meet its burden of showing a high probability of substantial harm. EEOC noted that the agency's finding of unsuitability was not explained in any detail, nor did it address the duration of the risk posed by complainant's weight (complainant had no current limitations or restrictions); the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Accordingly, the Commission found that the agency unlawfully regarded complainant as substantially limited in the major life activity of working, perceiving complainant as unable to perform a broad range of jobs in various classes requiring heavy lifting, continuous standing, walking, pushing, pulling, bending, and reaching. EEOC ordered the agency to offer complainant the position at issue, or a substantially equivalent position, as well as back pay with interest; training for the agency's human resource personnel; and remanded the issues of compensatory damages and attorney's fees to an EEOC Administrative Judge. Henderson v. United States Postal Service, EEOC Appeal No. 01A05175 (June 3, 2003).

Release of Medical Information Violated the Rehabilitation Act. Complainant's former supervisor (S1) provided his new supervisor (S2) with complainant's work folder containing a letter from complainant's physician referring to "work-related stress." Complainant claimed that the presence of medical documentation in his work folder violated the Rehabilitation Act, and the Commission agreed. EEOC found no exceptions, in this case, to the requirement that information pertaining to any disabled or not disabled employee's medical history or condition be maintained on separate forms and in a separate file from a non-medical file, and be treated as a confidential medical record. By way of remedy, the Commission ordered the agency to remove all medical documentation from complainant's work folder, post a notice of a finding of discrimination, and pay any reasonable attorney's fees. Higgins v. Department of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003).

Agency's "Reinstatement/Re-hire Policy" Impermissible Qualification Standard. In 1992, the agency terminated complainant as a Mail Handler when she failed to adhere to a Last Chance Agreement (LCA), which had been implemented as a purported reasonable accommodation of her medical condition (lupus), because of continued absences associated with her medical condition. Beginning in 1995, complainant made repeated requests for reinstatement, informing the agency that her medical condition was stable and that she could return to work. The agency denied her requests and complainant filed an EEO complaint. An AJ found disability discrimination, and the agency declined to implement the AJ's decision and filed an appeal with EEOC. The Commission reversed the agency, finding that the agency's policy not to rehire employees discharged for cause, when applied to complainant, who was discharged because of excessive absences associated with a disability, screened her out on the basis of disability, failing to provide any measure of her ability to perform the essential functions of the position to which she sought reinstatement. EEOC further found, citing 29 C.F.R. Section 1630.10, that the agency's proffered business necessity, i.e., employees must have good attendance, was a rigid application of the policy that permitted the agency to ignore complainant's updated medical and employment documentation, which showed that her medical condition had been stable for four years and that she had recently and currently successfully maintained employment with no attendance problems. Accordingly, the Commission found that the agency's reinstatement/rehire policy, as applied to complainant, was an impermissible qualification standard. It ordered retroactive reinstatement with back pay, interest, and retroactive benefits and seniority. Pointer v. United States Postal Service, EEOC Appeal No. 07A10057 (April 24, 2003).

In the following cases, the Commission found that the agency had violated the Rehabilitation Act by not providing complainants with reasonable accommodation.

Court v. United States Postal Service, EEOC Appeal No. 07A10114 (May 15, 2003) (agency refused to permit complainant, who had major depression, chronic fatigue and insomnia, to work full time on a different tour of duty; EEOC ordered agency to reasonably accommodate complainant's disabilities, noting that the duty of reasonable accommodation is a continuing one, and sustained AJ's award of $60,000 in non-pecuniary damages)

Burchfield v. Department of the Treasury, EEOC Appeal No. 01A20021 (March 19, 2003) (increasing compensatory damages from $3,000 to $12,000 for emotional distress when complainant (who used a wheelchair) was not informed by agency managers that there were problems accessing the bathrooms at an out-of-state training facility)

Smith v. Department of the Army, EEOC Petition No. 03A20073 (May 15, 2003) (agency had obligation to reassign petitioner, who had been medically disqualified from his welding position, to the vacant funded position of Material Expediter for which he was qualified; EEOC differed with the Merit Systems Protection Board (MSPB), which had found no discrimination when complainant was not permitted to work, and remanded the matter to the MSPB for further consideration and issuance of a new decision)

Failure to State a Claim

In the decisions below, the Commission found that complainants' complaints were not cognizable.

Williams v. Department of Justice (United States Marshals Service), EEOC Appeal No. 01A30630 (March 19, 2003), RTR denied, EEOC Request No. 05A30725 (May 27, 2003) (applying the common law definition of "employer", the Commission found that complaint was not an employee with the agency, but was paid, supervised, and disciplined by contractor employees; and was provided equipment, insurance benefits and vacation by a private company contracted by the agency to provide court security)

AJ's Award Becomes Agency's Award Upon Failure of Agency to Appeal. In Smith, et al. v. United States Postal Service, EEOC Appeal Nos. 01994524, et al. (January 31, 2001), an AJ issued a decision finding that the three named complainants were entitled to an award of compensatory damages and attorney's fees as follows: complaint "A," $190,445.95 compensatory damages; complainant "B," $65,000 compensatory damages; complainant "C," $54,000 compensatory damages and $4,200 attorney's fees. In his decision, the AJ indicated that the agency must issue an order stating that it did not intend to fully implement the AJ's decision and file an appeal with the Commission. Although the agency filed an appeal brief with the Commission, it did not issue its Notice of Final Order within the requisite 40 days of its receipt of the AJ's decision. See 29 C.F.R. Section 1614.110(a). Accordingly, the Commission found that the AJ's decision became the final action of the agency and dismissed the agency's appeal. EEOC ordered the agency to provide the complainants with the relief ordered by the AJ. Gibby, et al. v. United States Postal Service, EEOC Appeal No. 07A20025, et al. (September 13, 2002), RTR denied, EEOC Request No. 05A30107, et al. (March 20, 2003).

EEOC Has No Jurisdiction Over MSPB Decisions in the Absence of Discrimination Claims. In 1995, the agency found petitioner disabled for his position of Postal Service Clerk due to a psychiatric condition. In 2001, petitioner requested that the agency find him recovered from his disability. Subsequently, the agency issued a decision finding complainant recovered and no longer eligible for continued disability payments. Complainant appealed to MSPB requesting reinstatement, arguing that his removal was invalid since he was now considered recovered. In 2002, MSPB dismissed the appeal for failure to state a cause of action, finding that complainant's recovery did not invalidate prior decisions of the MSPB or the agency, which previously addressed the issue of removal. Complainant filed a petition with the Commission from the MSPB Final Order denying complainant's petition for review. EEOC denied complainant's petition for review of the MSPB's decision. The Commission stated that a determination as to whether petitioner was recovered, and no longer eligible for continued disability payments, was not a basis over which EEOC has jurisdiction. Tyler v. Office of Personnel Management, EEOC Appeal No. 03A20090 (March 4, 2003).

Complainant Entitled to a Hearing in the Absence of Evidence That She Received the Proper Notice.

In this case, EEOC vacated the FAD's finding of no discrimination and remanded the matter for a hearing in the absence of evidence that she received the investigative file or was notified of the right to request a hearing, in accordance with 29 C.F.R. Section 1614.108(f). Complainant claimed that she wanted a hearing and was misinformed about the process for requesting a hearing before an AJ. Williams v. Department of Veterans Affairs, EEOC Appeal No. 01A21667 (April 14, 2003).

Complainant's Claim of "Racial Profiling" Not Supported by the Evidence. In affirming the FAD's finding of no discrimination, the Commission found the claim of "racial profiling" by complainant (African-American) when he was detained and questioned by security forces at a military base, because they suspected he was intoxicated, was mere speculation. EEOC found sufficient evidence that the security forces reasonably suspected complainant was intoxicated. Tate v. Department of the Air Force, EEOC Appeal No. 01A31691 (May 15, 2003).

The Doctrine of Res Judicata Precludes Complainant From Filing Second Complaint. In affirming the agency's dismissal of complainant's complaint, the Commission found that the claim raised by complainant in complaint 1, concerning the agency's alleged failure to support him for a promotion, was also raised, and ultimately adjudicated, in the Commission's appeal decision on complaint 2. Thus, complaint 1 was precluded by the doctrine of res judicata, irrespective of the bases raised in connection with his ultimate non-selection for promotion. Bezelik v. National Security Agency, EEOC Request No. 05A11104 (May 8, 2003).

Commission Sets Forth Appropriate Criteria for Summary Judgment. Complainant, a GS-11 investigator with the agency's activity, filed a complaint claiming discrimination on a number of bases when he was not promoted to a GS-12 investigator's position even though he applied and was certified as eligible for one of five vacancies. The agency accepted complainant's complaint and conducted the required investigation. In response to complainant's request for a hearing, an AJ was assigned and took control of the complaint, directing the parties to engage in discovery within certain specified parameters. Subsequently, complainant filed a motion to compel discovery. The agency filed a motion for a decision without a hearing, as well as a reply to complainant's motion to compel discovery. In opposing the agency's motion for summary judgment, complainant criticized the agency for failing to thoroughly respond to his discovery requests. Complainant also asked the AJ to impose sanctions on the agency for its failure to produce requested discovery data. The AJ granted the agency's motion for summary judgment, finding no discrimination, and denied complainant's motion to compel and request for sanctions. The agency issued a final order fully implementing the AJ's decision. On appeal, the Commission vacated both the agency's and the AJ's decisions, and remanded the matter for a hearing.

The Commission found that the AJ had refused to compel the agency to turn over evidence in its possession, which may have been critical to complainant's effort to effectively oppose the agency's motion for summary judgment. EEOC found that, instead of reviewing each of complainant's original requests and determining which had merit and which did not, the AJ ignored the discovery dispute and accepted the agency's position and adopted its arguments. The Commission further found that the agency's failure to respond in good faith to complainant's initial discovery request could have justified an AJ's decision to grant complainant's sanctions request against the agency, e.g., by providing complainant with the opportunity to propound additional discovery requests, notwithstanding the AJ's order setting forth the boundaries of discovery.

Finally, the Commission found that the AJ had acted impermissibly as a fact finder in rendering his ruling, adopting the agency's "Statement of Facts." The Commission found that, in crediting the agency's version of the material facts, the AJ inappropriately assessed the credibility of the various parties' explanations, weighed the evidence, and determined the truth of the matters that should not have been decided until after a hearing was held.

In issuing its decision, the Commission set forth the following criteria, which must be met before a case is decided without a hearing, as a matter of law:

the AJ must be certain that the investigative record has been adequately developed;

there must be no genuine issues of material facts;

there must be no need for the AJ to make findings of fact; and

the AJ must ensure that the opposing party is given: (1) ample notice of the proposal to issue summary judgment; (2) a comprehensive statement of the allegedly undisputed facts; (3) the opportunity to respond to such a statement; and (4) the chance to engage in discovery before responding, if necessary.

Petty, Jr. v. Department of Defense (Defense Security Service), EEOC Appeal No. 01A24206 (July 11, 2003). See also Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July 11, 2003) (judgment as a matter of law should not have been granted to the agency due to many unresolved issues, which require assessment as to the credibility of various management officials in light of the evidence submitted by complainant).

Introduction

This article addresses the nature, process and criteria for certification of class actions in administrative proceedings with regard to claims of workplace discrimination in the Federal sector. It is not intended to be an exhaustive discussion of class complaints. Its purpose, instead, is to provide the reader with a general procedural overview from the initiation of a class complaint to certification or dismissal. Therefore, the discussion does not include the hearings process or findings on the merits of the complaint and the nature of relief awarded in the event discrimination is found. The Commission's regulations regarding class complaints are set forth at 29 C.F.R. Section 1614.204 et seq. (as revised, November 9, 1999). In addition, information pertaining to class complaints is set forth in Chapter 8 of the Commission's EEO Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), as revised, November 9, 1999. The discussion that follows is based, therefore, on the Commission's regulations, its management directive, and Commission case law.

The Nature of Class Actions

A class complaint is a written complaint of discrimination filed on behalf of a class by the agent of the class. The agent of the class is a class member who acts for the class during the processing of the complaint. The class is defined as a group of employees, former employees, or applicants for employment who, it is claimed, has been or is being adversely affected by an agency personnel management policy or practice that discriminates against the group on the basis of race, color, religion, sex, national origin, age, or disability.

The class complaint must allege the following, which we will more fully address later in this article:

the class is so numerous that a consolidated complaint of the members of the class is not practical;

there are questions of fact common to the class;

the claims of the agent of the class are typical of the claims of the class; and,

the agent of the class, or, if represented, the representative, will fairly and adequately protect the interests of the class.

The Class Action Process

The Commission's regulatory requirements for class complaints provide a framework different from that for individual complaints. Class complaints require a four-stage process. The first stage is the establishment of a class complaint. At this stage, the class agent must seek counseling from an agency EEO Counselor. The second stage is a determination by an EEOC Administrative Judge (AJ), subject to final agency action, as to whether to certify the complaint as a class action. The third stage, assuming that the complaint has been certified as a class action, involves a recommended decision from an AJ on the merits of the class complaint, subject to final agency action in the form of a final agency decision. The fourth stage, where there has been a finding of class-based discrimination, is the determination of the claims of relief of the individual class members.

As with individual complainants, an employee, who seeks to represent a class of employees, must initiate counseling and undergo pre-complaint counseling within the 45-day period set forth at 29 C.F.R. Section 1614.105, with one exception: a complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint. 29 C.F.R. Section 1614.204(b).

MD-110 defines the term "move" to mean that the complainant must make his or her intention to process the complaint as a class action clear to the investigator if the complaint is still in the investigation phase of the process; to the AJ if the complainant is at the hearing phase of the process; or to the agency if the investigation has been completed and the complainant has not elected to proceed to a hearing. A complainant may make his or her intention clear through a letter, a formal motion, or any means that effectively informs the agency, investigator (if the matter is in the investigative stage of the process), or AJ of the complainant's intent to pursue a class action.

Again as with an individual complaint, a class complaint must be filed with the agency that allegedly discriminated against the putative class. 29 C.F.R. Section 1614.106. A class complaint must be signed by the class agent (the complainant) or a class representative and must identify the policy or practice adversely affecting the class as well as the specific action or policy affecting the class agent. 29 C.F.R. Section 1614.204(c)(1).

Within 30 days of an agency's receipt of a class complaint, including the agency's receipt of the class complaint during its investigation of the aggrieved person's individual complaint, an agency must designate an agency representative and forward the complaint, along with a copy of the EEO Counselor's report and any other relevant information about the complaint, to the Commission. 29 C.F.R. Section 1614.204(d)(1). When any complaint is filed, an agency must preserve any and all evidence with potential relevance to the class complaint. This is a continuing obligation that begins as soon as the complaint is filed, even before the class has been certified, and continues throughout the processing of the complaint. The agency must forward the class complaint to the EEOC District Office having jurisdiction over the agency facility where the complaint arose. MD-110 provides additional information pertaining to where the class complaint should be forwarded.

Certification or Dismissal

The Commission will assign an AJ to issue a decision on certification of the complaint. 29 C.F.R. Section 1614.204(d). A class complaint will be dismissed if any of the following criteria apply and are not satisfied:

The complaint does not meet all of the prerequisites of a class complaint under 29 C.F.R. Section 1614.204(a)(2) (i.e, numerosity, commonality, typicality, and adequacy of representation), which will be discussed in greater detail further in this article;

The AJ may direct the complainant or the agency to submit additional information relevant to the issue of certification. 29 C.F.R. Section 1614.204(d)(1).

With regard to the relationship of class complaints and individual complaints, an individual complaint that is filed before or after the class complaint is filed, and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint. If the class complaint is dismissed at the certification stage, the individual complaint may still proceed, unless the same or another basis for dismissal applies. If the class proceeds to a hearing, the individual claim may be presented at the remedy stage by the complainant. If the class complaint is dismissed at the certification stage, the class members may not proceed unless they have timely filed individual complaints. Within 30 days of receipt of a decision dismissing a class complaint for failure to meet the criteria of a class complaint, the agency shall issue the applicable acknowledgment and process each individual complaint that was subsumed into the class complaint in accordance with the relevant regulations under 29 C.F.R. Part 1614.

The AJ determines whether the class complaint is certified; certified conditionally, for a reasonable time period, until complainant finds representation; or dismissed. However, certification of a class will not prevent an AJ from modifying the certification order or dismissing the class complaint in light of subsequent developments. Further, the AJ has the authority, in response to a party's motion or on his or her own motion, to redefine a class, subdivide it, or dismiss it if the AJ determines that there is no longer a basis for the complaint to proceed as a class complaint. The AJ then transmits the decision to accept or dismiss a class complaint to the agency and the agent. It is incumbent upon the agency to take final action by issuing a final order within 40 days of receipt of the AJ's decision. The final order notifies the agent whether the agency will implement the AJ's decision. If the final order will not fully implement the AJ's decision, the agency shall simultaneously appeal the AJ's decision in accordance with 29 C.F.R. Section 1614.403 and append a copy of the appeal to the final order. The complainant has 30 days from receipt of the final order to file an appeal, on the EEOC appeal form provided to complainant by the agency.

If the decision is to accept (certify) the class complaint, the agency must notify all class members. 29 C.F.R. Section 1614.204(e)(1). The agency must use all reasonable means to notify all class members of the acceptance of the complaint within 15 days of its receipt of the AJ's decision, or within a reasonable time frame specified by the AJ. Class members may not "opt out" of the defined class; however, they do not have to participate in the class or file a claim for individual relief. In the event the matter is settled, all class members must receive notice of any settlement or decision on the class complaint, whether or not they participated in the action. In addition, they are to be given the opportunity to object to any proposed settlement and to file claims for individual relief if discrimination is found. Where a resolution is proposed, all class members must be notified in the same manner as the notification of certification of the class was given. The notice of proposed resolution must include a copy of the proposed resolution; set out the relief, if any, that the agency will grant; and inform the class members that the resolution will bind all members of the class. As indicated above, class members have the right to submit objections to the settlement. If the AJ finds that the resolution is fair, adequate and reasonable to the class as a whole, the resolution will bind all members of the class. 29 C.F.R. Section 1614.204(g)(4). An AJ's determination with regard to the resolution is subject to appeal by the parties.

In cases where the AJ dismisses the class complaint at the certification stage, the AJ's decision will inform the agent that the complaint is being filed on that date as an individual complaint and will be processed under the Commission's regulations set forth in 29 C.F.R. Part1614; that the individual complaint is also being dismissed in accordance with 29 C.F.R. Section 1614.107(a); or, in the case of a complaint forwarded to the AJ during the agency's investigation of the complaint, that the complaint is being returned to the agency and will continue from the point that the agency's investigation ended with the referral of the complaint to the AJ.

We now turn to the specific criteria, cited above, which must all be satisfied in order for a class complaint to be certified by an AJ. In Tyson, et al. v. Department of the Army, the complainant, the class agent, filed a class complaint, claiming discrimination based on race, on behalf of purportedly eligible Black employees and applicants for employment with regard to promotions and appointments to positions at the GS-14 level and above at HQ TRADOC and Fort Monroe, VA. Complainant asserted that, although Blacks comprised approximately one quarter of the workforce, only two Blacks encumbered positions at that level. Complainant averred that the agency "positioned, prepared, and promoted/appointed" White employees in such a manner as to result in the disparate treatment of Blacks. In support of his claim, complainant identified two recent promotions to GS-14 and GS-15 positions, respectively, which were both awarded to White employees.

After discovery, an AJ issued a recommended decision denying certification for failure to satisfy the requirements for class certification and indicated that complainant could pursue his individual complaint of workplace discrimination under Title VII. The AJ determined that the allegations were too vague to be a class claim. The AJ also found that complainant failed to satisfy the criteria of numerosity, commonality, typicality, and adequacy of representation as set forth in 29 C.F.R. Section 1614.204. In its final order, the agency adopted the AJ's decision.

In affirming the agency's final action on appeal, the Commission noted that, in the case of class complaints, the requirements of commonality and typicality have to be addressed prior to addressing the criterion of numerosity so that the appropriate parameters and size of the class membership could be determined.

Commonality and Typicality

In Tyson, the Commission pointed out that the purpose of the requirements of commonality and typicality is to ensure that the class agent suffers the same injury as the members of the proposed class. The Commission noted that, in application, the two criteria tend to merge and are often indistinguishable from each other. Commonality requires that there be questions of fact common to the class. Therefore, the class agent has the burden of establishing some evidentiary basis from which an overriding policy or practice of discrimination can reasonably be inferred. The class agent may not merely set forth conclusory claims, alone, to satisfy commonality. Rather, he or she must identify, specifically, facts common to the class. This may be achieved through allegations of specific incidents of discrimination, supporting affidavits containing anecdotal testimony from other employees against whom an employer allegedly discriminated in the same manner as the class agents, and evidence of specific adverse actions.

As for typicality, the Commission stated that the claims of the class agent must be typical of the claims of the class. The overriding typicality principle, opined the Commission, is that the class members' interests must be fairly encompassed within the claim of the class agent. (Cf. Gilyard, III, et al. v. Department of Energy, EEOC Appeal No. 01A01550 (June 9, 2003) (to establish typicality complainant must show some nexus with the claims of the class, e.g., similarity in the conditions of employment, as well as alleged discrimination affecting both the agent and the class).

In Tyson, the Commission agreed with the AJ's conclusion that complainant had failed to satisfy the commonality and typicality elements because he failed to submit evidence demonstrating that other similarly situated, qualified Black employees, or outside applicants, were also denied the opportunity to apply for these positions. In this regard, the Commission noted that it was irrelevant in determining commonality or typicality whether complainant, or anyone from the putative class, submitted an application because complainant had contended that the agency pre-selected candidates or only provided vacancy notices to select employees or groups of employees, or arbitrarily restricted eligibility to certain groups, effectively precluding the opportunity for otherwise qualified candidates to apply for GS-14 and above positions.

The Commission further stated that complainant's statistical evidence failed to show that Black employees encumbering GS-13 positions would have, in fact, been qualified for promotion/appointment to the GS-14 and above positions filled by the agency during the pertinent time period. The Commission found it speculative to merely assume that the Black employees, by virtue of their GS-13 positions (i.e., the next lower grade), were qualified in the absence of further evidence regarding their qualifications. Moreover, complainant provided no evidence to show that, like himself, the members of the purported class were also unaware of the vacancies, or were arbitrarily eliminated from eligibility by restrictions in the vacancy announcements.

Numerosity

Turning to the requirement of numerosity, the Commission in Tyson, citing 29 C.F.R. Section 1614.204(a)(2)(i), noted that the putative class must be so large as to make joinder impractical. Considerations, stated the Commission, include the following: the number of class members; the location and dispersion of class members; the ease of identifying class members; and any other factors which would indicate a substantial hardship in the class members participation in the complaint. No set number is required and each matter is evaluated on a case-by-case basis. While the exact number of class members need not be shown pre-certification, some showing must be made of the number of individuals affected by the alleged discriminatory practices who, therefore, may assert a claim. (Cf. Gilyard, III, et al. v. Department of Energy supra (courts generally reluctant to certify classes below approximately 50 members)).

In Tyson, the Commission found that complainant provided no evidence of the number of Black employees, or outside applicants, who were qualified for the vacancies. The Commission also noted that not even an approximation of the number of the putative class could be attempted. The Commission found that joinder of the complainants may be impractical, given that the class included potential outside applicants for employment. However, because the record was devoid of any evidence suggesting a number for the purported class, complainant failed to satisfy the requirement for numerosity.

Adequacy of Representation

In Tyson, the Commission found that complainant had failed to satisfy this perhaps most critical requirement because the rights of the absent class members would be determined by the judgment. The Commission cited the requirement, in 29 C.F.R. Section 1614.204(a)(2)(iv), that the agent of the class or, if represented, the representative, can fairly and adequately protect the interests of the class. The Commission agreed with the AJ's determination that complainant had failed to demonstrate that he had the necessary knowledge and skills to represent the class, or that he was able to insure adequate funding to obtain representation. Accordingly, the Commission sustained the agency's dismissal of the class complaint.

Processing Individual Complaints Following Dismissal of Class Action

Finally, we address the agency's obligation, pursuant to 29 C.F.R. Section 1614.204(d)(7), when dismissing a class complaint, to notify a complainant that the complaint is also being either accepted or dismissed as an individual complaint. In Pruett v. Department of Defense, Defense Logistics Agency, the Commission found that the agency did neither. Instead, the agency merely notified the class agent that rejection of the complaint as a class complaint did not preclude the use of the individual complaint procedures. The Commission deemed the agency's action to be tantamount to a dismissal of the individual claim. Accordingly, the Commission reversed the agency's dismissal of the class agent's claim concerning his individual complaint and remanded that claim for further processing.